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[2011] VSCA 275
General information, not legal advice.
Court of Appeal (Vic)
2011-09-09
Ashley JA
Original judgment source is linked above.
DPP v Piscopo [2010] VSC 498 (Kyrou J)
CRIMINAL PROCEDURE - Dismissal of charge under s 49(1)(e), Road Safety Act 1986 (Vic) of refusing to comply with requirement made under s 55(1) to accompany police officer to a place to furnish a sample of breath - Nature of requirement under for the purposes of - Whether trial judge erred in holding that requirement to accompany and remain under integral components of a single composite requirement - Whether judge erred in holding that motorist must be informed that he or she is required to accompany police officer to a place and to remain there until a sample of breath is furnished and certificate is given or until 3 hours after the driving, whichever is sooner - 'To accompany' and 'to remain' two discrete requirements with different content - Appeal allowed - Matter remitted to Magistrates' Court for a conviction to be entered, and for determination of penalty.
1 The respondent, Joseph Piscopo, was charged with two offences allegedly committed on 13 September 2008. The first charge, to which he pleaded guilty at the Sunshine Magistrates' Court on 13 July 2009, related to the respondent's driving of a motor vehicle on a highway whilst disqualified, contrary to s 30(1) of the Road Safety Act 1986 ('the Act'). The second charge, to which he pleaded not guilty, was that -
... at Delahey on 13/09/2008 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a place namely Keilor downs Police Station he did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.
2 On 13 July 2009, a Magistrate dismissed the second charge.
3 The Director appealed to the Supreme Court, pursuant to s 92(1) of the Magistrates' Court Act 1989.
4 A judge of the Trial Division dismissed the appeal on 12 November 2010. Now the Director appeals by leave against that decision pursuant to s 17A(3A) of the Supreme Court Act 1986.
6 Part 5 of the Road Safety Act 1986 is concerned with offences involving alcohol or other drugs. I will refer to a number of provisions in these reasons; but presently it is only necessary to mention ss 49(1)(e) and 55(1).
7 Under s 49 of the Act -
(1) A person is guilty of an offence if he or she -
...
(e) refuses to comply with a requirement made under section
55(1), (2), (2AA), (2A) or (9A);
8 The 'person' with whom Part 5 is concerned may be the driver of a motor vehicle, or a person in charge of a vehicle, or an occupant of a vehicle. The respondent was the driver of a vehicle. In these reasons, I will not keep repeating the alternative persons who might be affected by the provisions of Part 5.
9 Section 55(1) of the Act provides that:
(1) If a person undergoes a preliminary breath test when required by a
member of the police force ... under section 53 to do so and -
(a) the test in the opinion of the member ... in whose presence it is
made indicates that the person's breath contains alcohol; or
(b) the person, in the opinion of the member ..., refuses or fails to
carry out the test in the manner specified in section 53(3) -
any member of the police force ... may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force ... to a place or vehicle where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath ... and been given the certificate referred to in subsection (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
Example
A person may be required to go to a police station, a public building, a booze bus or a police car to furnish a sample of breath.
10 The present appeal concerns the interpretation of s 49(1)(e) and s 55(1).
11 The latter sub-section empowers a police officer to require a driver to accompany a police officer to a place or vehicle ('the accompany requirement') for the purposes of furnishing a sample of breath for analysis by a breath analysing instrument.
12 The sub-section further empowers a police officer to require a driver to remain at the place or vehicle until a suitable sample of breath has been provided, or until 3 hours after the driving, whichever sooner occurs. In these reasons, again only for convenience, I will call this 'the remain requirement'.
14 In this appeal, a central issue was whether the accompany and remain requirements were separate and independent or were components of a single, conjoint requirement. That issue focussed upon the words 'a requirement made under section 55(1)' in s 49(1)(e). It was not in debate that it was essential to prove refusal to comply with such a requirement if that s 49(1)(e) offence was to be made out. Although, according to the charge, the refusal was a refusal to accompany, the argument which found favour below was that the relevant requirement was to accompany and remain. So, the requirement stated by the police officer having been only a requirement to accompany, an essential matter for proof had not been established. But according to the appellant's argument, below and in this Court, s 55(1) provides for discrete requirements - to accompany, and to remain. For that reason, the police officer had imposed as a requirement all that was necessary to satisfy the words of s 49(1)(e).
16 It is not in dispute that at about 7.37 pm on 13 September 2008 a motor vehicle driven by the respondent along Kings Road, Delahey, was intercepted by a police officer ('the informant'). Checks revealed that the respondent was disqualified from driving at the time.
17 The informant gave viva voce evidence at the Sunshine Magistrates' Court on 13 July 2009. In cross-examination he said that, on the basis of the respondent's looks, movements, and a strong smell of beer on his breath, he formed the opinion that the respondent had consumed alcohol, for which reason he conducted a preliminary breath test.
18 The informant further gave evidence that, because the test result was positive, he asked the respondent to accompany him to a Police Station. The conversation between them, according to the witness's account, was in the following terms:
I now require you to accompany me to the Keilor Downs Police Station for the purpose of a breath test.
He said: nuh.
I - my next line was: you said you don't want to come back for a breath test.
Yes? - - - he said: yes, that's right.
Yes? - - - I said: I require you to come back but you don't want to do that. I'll inform you that you could face a longer licence loss by not coming back. Do you understand that?
Yes? - - - he said: yeh. I'm not coming back 'cos youse lock me up. Been there with that shit before. I know what youse do.'
Yes? - - - I said: well, I have never met you before. I don't know you, don't know your history. Again, are you prepared to come back for a breath test?
Yes? - - - he said: no 'cos you're going to lock me up anyway.'
and
That was the end of the direct conversation, your Honour.
19 In the course of cross-examination, the respondent's counsel asked the witness:
Did you, at any time, tell [the respondent] that he would be required to remain at the police station only until a satisfactory sample of breath was provided or until three hours from his driving had elapsed?
The witness replied:
No, that didn't come out my mouth, no.
20 I should set out some of his Honour's careful analysis. He said this:
requirement is to accompany a police officer to a police station where the sample of breath is to be furnished and to remain there until the sample is furnished and a certificate is given or until three hours have elapsed since the driving, whichever is sooner. The second requirement has both an 'accompany' component and a 'remain' component. These components, however, are not separate requirements; they are integral parts of a single composite requirement.
22 His Honour also considered an argument that s 55(1) must be interpreted in accordance with s 32 of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter') in circumstances where, it was submitted, s 21 of the Charter - the human right to liberty and security - was engaged. He concluded, in accordance with authority, that compliance with a s 55(1) requirement does not involve detention, but does involve a deprivation of liberty. He continued -
... I have concluded that the interpretation of s 55(1) of the RS Act which I have adopted is correct and that, so interpreted, s 55(1) is compatible with the human right set out in s 21(3) of the Charter. That interpretation requires that a motorist be informed of the temporal limitation in s 55(1) and thereby ensures that any deprivation of liberty that is involved in complying with a requirement under s 55(1) is in accordance with the procedures that are set out in that section. By being aware of the temporal limitation, a motorist can take steps to ensure that the deprivation of his or her liberty does not exceed the maximum period permitted by s 55(1).
23 Counsel for the appellant submitted that the judge's interpretation of s 55(1) - that is, his Honour's conclusion that the 'requirement to accompany and the requirement to remain are two components of a single composite requirement' - was erroneous. It could be equally argued, according to the appellant, that s 55(1) twice uses the infinitive 'to' - preceding, respectively, the verbs 'accompany' and 'remain' - this indicating that there are separate and distinct requirements. Had the legislature intended to create a single, composite requirement, it would have used a single infinitive, preceding 'accompany'.
24 Counsel further submitted that his Honour also wrongly proceeded to treat the components as separate for the purposes of establishing the offence under s 49(1)(e) ('refusing to comply with a requirement under s 55(1)'), and yet treated the components as single and inseparable for the purpose of communication to the motorist. If they were components of a single composite requirement, then his Honour was obliged to apply his finding consistently to both the 'nature of the act which is alleged to constitute a refusal to comply with a requirement under s 55(1)'[1] and to the contents of the communication to the motorist. If the requirement to accompany and the requirement to remain were only composite parts of the one requirement, then, argued the appellant, how could a motorist refuse to comply with only one of the composite parts and still be guilty of the offence under s 49(1)(e).
25 According to the argument for the appellant, the two requirements are fundamentally different. They arise at different times. The requirement to accompany arises before the requirement to remain.
26 Counsel for the respondent contended that the judge was correct to adopt a plain meaning of the words in s 55(1), and to conclude that it sets two rather than three requirements. Even if it was the contrary, the temporal limitation would still need to be stated to the motorist. That was so because, commencing at the time when driving ended, a police officer was empowered in the circumstances specified in s 55(1)(a) or (b) to require a motorist to accompany an officer to a place or vehicle, and there remain until (successfully) tested, but not beyond the 3 hour limit.
27 The respondent also filed a Notice of Contention as follows:
28 Counsel submitted, in support of ground 1, that the respondent must at least have been informed of the temporal limitation at the time of the requirement to accompany, because that requirement itself might extend for so long a time. An example was given of a requirement to accompany imposed on a driver in the country, far from the nearest police station specified as the relevant place.
29 In support of this argument, counsel called in aid the Charter of Human Rights and Responsibilities Act 2006. He relied upon s 21(1)-(4) and 38(1) of that Act. He argued that parliament did not give power to a police officer, under s 55(1), to impose an open-ended requirement to accompany. For a police officer to impose such a requirement was effectively to impose a detention for an indeterminate period. He submitted further that any ambiguity in construing s 49(1)(e) or s 55(1) of the Road Safety Act should be interpreted to give effect to the human rights set out in ss 21(1)-(4) and 38.
30 In support of ground 2 of the Notice of Contention, counsel submitted that a requirement imposed under s 55(1) must be objectively reasonable. Here, the respondent had expressed a fear of what might happen if he were to accompany the police officer to a police station. The police officer had done nothing to disabuse the respondent of his fear. That had the effect that the requirement itself was rendered objectively unreasonable.
31 The relevant offence is created by s 49(1)(e) of the Act, not s 55(1).
32 The key concepts are 'refusal' and 'requirement made under s 55(1)'.
33 There could not be 'refusal' of a requirement unless the latter had been communicated to the motorist.
34 The need for communication of the requirement in order for there to be an offence under s 49(1)(e) is also implicit in the words 'requirement made'. It is true that 'made', by connection with 'under', might be read as simply identifying the statutory source of the requirement; and it might then be argued that s 55(1) itself says nothing about communicating any requirement. But that would work a nonsense.
35 A 'requirement made' under s 55(1) can effectively be confined e to requirements to furnish a sample of breath and for that purpose to accompany and to remain.[2] It is true, if an initial sample of breath is for some reason unsatisfactory, that a further sample or samples may be required; and, if all else fails, that a blood test may be required. But requirements made under s 55(2A) and (9A) are discrete, and refusals to comply with requirements made under those sub-sections are specifically addressed by s 49(1)(e).
36 The appellant's submissions with respect to the content of 'a requirement made under s 55(1)' did not deny that, as a matter of grammar, the sub-section could be read as the judge below concluded it should be. Rather, it was contended that another reading was grammatically available, and that the alternative reading should be preferred for reasons of context and consequences.
37 In my opinion, the judge's analysis of the subsection at [52]-[53] in his reasons, cited at [20] above, shows that the appellant's concession was rightly made. But I also consider that the reading advanced by the appellant is an av[3]ilable one.3 So the question becomes, which of the possible readings, each of which is confronted by a grammatical hurdle, represents the correct interpretation in all the circumstances?
38 In resolving the question, I turn first to consider aspects of the legislation, and the state of the authorities. I adhere to the following analysis:
(2) The offences created by the Part are set out in s 49(1)(a)-(i). Paragraphs (a),(b),(ba),(bb),(f),(g),(h) and (i) all relate to a person driving or being in charge of a motor vehicle at a time when, in fact or by operation of a deeming provision, there is excess alcohol or illicit drug in the person's blood.
(3) The offences created by paragraphs (c),(ca),(d),(e), (ea) and (eb) are different in kind. They relate to refusals of different kinds, each of which may be said to frustrate the obtaining of a sample which will establish breach of one of what might be called - not quite accurately, but conveniently - the excess concentration offences.
(5) In the context of s 55(1), the power to make requirements 'is invested by the legislature in the police in order to effectuate the purposes and policies of the legislation'.[4] The same statement is apt to describe the requirements which may be made pursuant to the other sections to which I have referred.
(6) DPP v Foster[5] concerned a charge brought under s 49(1)(f).[6] Proof of the offence requires the prosecution to establish that a sample of breath was furnished under s 55. That made it relevant to consider the requirements specified by s 55(1). Winneke P held that it was erroneous to assume that the legislative intention which lies behind s 55(1) was to protect the interests of motorists. He described the consequences of the erroneous assumption this way: -
This assumption has led the courts to construe more strictly the discretionary powers of 'requirement' and to convert them into obligations, as distinct from powers. Thus it is said that the legislative purpose behind s. 55(1) is not to invest the police with a power to facilitate the objects of the statute, but rather to impose a 'duty to inform' the motorist of the reason why his or her liberty is being curtailed ...[7]
(7) The true position, his Honour said, was that -
Not only are the requirements 'to accompany' and 'to remain' not elements of the offence created by s. 49(1)(f) but they are severable in the sense that each power need only be exercised where the circumstances dictate.[8]
(8) To the same effect -
... the powers given to the police under that paragraph are permissive. They do not have to require a person to furnish a sample of breath nor do they have to require the person to go to the police station or to stay there for three hours if that is not desired or if that is not necessary. I see nothing in the section which would require a recitation on all occasions of all requirements.[9]
(9) Notwithstanding the above, where a charge is laid under s 49(1)(f), the consequence of the words 'under section 55' is that the prosecution must prove that the motorist was required to furnish a sample of breath under s 55.[10] But it is not necessary to prove that the motorist, for that purpose, was required to accompany or to remain.[11] Indeed, there may have been no need to make any such requirement: 'They are powers which a police officer "may" exercise as and when circumstances dictate'.[12]
(10) Accepting that there is a discretion whether the powers to 'require' need be exercised in any particular case, if a refusal offence is charged under s 49(1)(e), it is an essential element that the requirement alleged to have been refused was notified to the motorist, although a particular form of words is not necessary.[13] 'Waiver is irrelevant'.[14]
(11) There have been a number of refusal cases, subsequent to Foster, in which passing reference has been made to the number of requirements specified by s 55(1).
In DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson,[15] the latter two appeals concerned an alleged defect in a refusal charge laid under s 49(1)(e). One at least (Bell) was a refusal to accompany case. In that instance the requirement to accompany had not been stated in the charge as first drawn; but the charge had been amended at the hearing. In neither case was the requirement itself stated as a requirement to accompany and remain. No point was taken that a requirement to accompany, without more, would be inadequate. The inadequacies which were suggested found no favour with the Court.
In DPP v Greelish,[16] it was decided that, in the context of ss 49(1)(e) and 55(1), it is at least possible for a refusal to be constituted by either a refusal to furnish or a refusal to accompany. It was held that a charge of refusal to accompany was not susceptible of a defence under s 55(9), which relates to a refusal to furnish a sample of breath.
Buchanan JA referred to there being 'several requirements found in s 55(1).'[17] But to decide that appeal it was only necessary to focus upon there being at least two - requirement to furnish and requirement to accompany. That is, it was unnecessary to decide if requirement to accompany and requirement to remain was a conjoint requirement. The same observation may be made of the statement of O'Bryan AJA that there were possibly four separate requirements in s 55(1).[18]
In Hrysikos v Mansfield,[19] a motorist was charged with refusal to remain. A requirement stated in the 'accompany and remain' form had been complied with. But then the motorist had stepped outside the 'booze bus' in order to have a cigarette. She had been told that if she left the bus, she might lose her licence for two years. The question was whether it had been open to find that she had in fact refused to remain. This Court upheld the finding of Smith J that it had not been so open.
In the course of his reasons, Ormiston JA referred to 'the requirement [being] not merely to accompany ... and to remain ... but to do so for [a particular purpose]'.[20] But he also stated that -
... in each case the requirement is extended only so far as is necessary to enable a sample of breath to be furnished which is to be carried out within three hours of the last moment of driving.[21]
It was not necessary in disposing of that appeal to decide whether the requirement to accompany and the requirement to remain are conjoint or independent.
In DPP v Loftus,[22] a motorist was charged with refusing to remain. He had been asked to accompany, and had done so. There was some delay. The motorist asked if he was obliged to stay. A second police officer told him that if he did not remain until the test was performed, he could lose his licence and incur a fine. He left. The question was whether it had been necessary for the one police officer to require the motorist both to accompany and to remain. Cummins J answered that question 'no'. He held that s 55(1) specifies three requirements: to furnish, to accompany and to remain. They were discrete and 'need not be communicated holistically'.[23] By that, his Honour meant that they did not have to be communicated at the same time. It followed that the different requirements could be stated at different times.
Had his Honour held that there was a conjoint requirement to accompany and to remain, his reasoning would have been possible, but more difficult.
In Sanzaro v County Court & anor,[24] things were busy at a 'booze bus'. A police officer said to a motorist (who had willingly gone to the bus) that after he had completed checks he 'would require [the motorist] to accompany [him] on board the vehicle for the purpose of a breath test'; and that if the motorist refused to do so he might be charged with an offence. The motorist did leave, and he was charged with refusing to remain.
The issue was whether the policeman's statement, in the future tense, amounted to a requirement to remain. Nettle J, as his Honour then was, held that it did. It had provided the motorist with reasonably sufficient information.
In that case there had been an earlier-stated requirement to furnish and to accompany. The motorist had complied. So the requirement to remain could be characterised either as a statement of the second part of a conjoint requirement or as a statement of a discrete requirement. That issue did not have to be decided by Nettle J.
Blair v County Court of Victoria[25] was a case in which the motorist had been notified of all the s 55(1) requirements, and all of them were referred to in the charge. But the essence of the charge was a refusal to accompany. Mandie J held that there was surplus verbiage in the charge, but that it sufficiently communicated the substance of the matter.
As in most, at least, of the refusal cases to which I have referred, the issue joined in the present case did not arise.
In Mastwyk v DPP,[26] the motorist had been required to furnish and for that purpose to accompany. She refused to accompany by being placed in the lockable rear section of a police van. She was charged with refusal to accompany. The point of the appeal was whether reasonableness has any part to play in deciding whether there has been a s 49(1)(e) refusal. The Court held, by majority, that it did. The precise form of the requirement did not fall for consideration.
Uren v Neale[27] was a refusal case in which the requirement which is relevant for present purposes had been imposed under s 55(9A). The motorist had been asked to accompany a police officer to a police station for the purposes of a breath test, and he had agreed to do so. At the police station, he had not provided a satisfactory sample. Then the police officer had requested him to remain at the police station so that a blood sample could be taken. But he had refused to remain. Thus the charge under s 55(9A), the pertinent language of which is that a police officer -
May further require that person to accompany a member of the police force to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the driving...
The point taken was that the police officer had said nothing about remaining until the sooner of a sample being taken or the 3 hour limit (although the charge itself described both aspects of the requirement).
J Forrest J held that the key question was whether the motorist had been given sufficient information to know what was required of him. His Honour, though accepting that nowadays most motorists have a general understanding of the breath analysis system, said that -
I doubt very much whether anyone, unless highly familiar with the provisions of the RSA, is aware that of the temporal requirements as to remaining at 'a place' for the taking of a blood sample. No doubt the sunset provision of three hours as a maximum period was inserted to ensure that what would otherwise be an unlawful detention was limited to a reasonable time.
and
In my view the Magistrate misinterpreted s 55(9A) in relation to charge four. It was incumbent upon the prosecution to prove at least in a basic sense that the terms of the requirement were communicated to [the appellant]: critical to this is that three hours 'after the driving' was the maximum period over by which he could be detained.
and
What he was not told was the most basic proposition required by the section, namely that he did not have to stay at the station once the three hour period after the subject driving had expired. He was not given reasonably sufficient information to know what was required of him - indeed, he could have been detained interminably on the basis of [the respondent's] requirement.[28]
The case was not one in which the requirement to accompany arose in the context of the desired blood test. It was to be conducted at the place where the motorist then was. The decision stands for the proposition that when a requirement to remain is stated, the statement of requirement must mention the 3 hour limit. His Honour's reference to 'detention' was inapt. That aside, the decision says nothing as to whether the requirements to accompany and remain are discrete, or are aspects of a conjoint requirement.
(12) 'Detention' is not an apt word to describe the situation in which a motorist accedes to a requirement to accompany or to remain. That is so because the requirement must in the first place be reasonable - or else there will be no refusal; and second, because there is always the right to refuse. But because refusal itself is an offence which carries substantial penalties,[29] it has been recognised that accompanying and remaining involve some degree of restraint on liberty. In Hrysikos, Ormiston JA spoke of there being-
a deprivation of liberty implicit in the whole of the relevant provisions ...[30]
Again, in Mastwyk, Nettle JA described the power conferred by s 55(1) as being
limited to restricting the liberty of the subject to the extent that is necessary and reasonable[31]
and in the same case Redlich JA referred to 'the right to liberty' being -
the most elementary and important aspect of all common law rights.[32]
(13) Coco v The Queen [33] stands for the proposition that the courts should not impute to the legislature an intention to abrogate or curtail basic rights, freedoms or immunities except if -
Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.[34]
In the present case, the parliament has made it apparent that the right to liberty is to be curtailed to an extent. Hrysikos and Mastwyk show the way in which the legislation has been interpreted so as to confine the curtailment of that right to what is reasonable.
(14) The same may be said of the interpretation adopted by J Forrest J in Uren, because what I have called the 3 hour limit is a recurring and important feature of Part 5 of the Act. Thus -
(a) In the case of the offences created by s 49(1)(f)(g)(h) and (i) it is an element (sometimes called a 'necessary condition') of the offence that the sample of breath, blood or bodily fluid was taken from the alleged offender 'within 3 hours after driving or being in charge of a motor vehicle'.
(b) In some circumstances, a sample taken within the 3 hour period has presumptive consequences: see s 48(1)(a), (ab) and (ac), which relate to the offences created by s 49(1)(a), (b), (ba) and (bb). In essence, not less than the concentration of alcohol or drug which is detected by testing within that period is to be presumed, until the contrary is proved, to be the concentration present at time of commission of the alleged offence.
(c) Under s 53(1)(c)(d), a person may be required to undergo a preliminary breath test if a police officer believes on reasonable grounds that the person has 'within the last preceding 3 hours' either driven or been in charge of a motor vehicle when it was involved in an accident.[35] A like requirement may be made under s 55A(1)(c)(d) with respect to the making of an assessment of drug impairment; and a like requirement again made with respect to the taking of a preliminary oral fluid test under s 55D(1)(c)(d). See also s 55E(3).
(d) By s 53(4), a person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.
(f) Section 55(6) is in the same language, relevantly, as s 53(4). It relates only to a breath test. Section 55A(2), which relates to a drug assessment, is to similar effect. So are s 55D(8), which relates to undergoing a preliminary oral fluid test, and s 55E(10) which pertains to oral fluid testing.
(g) The admissibility of evidence of the results of a blood sample, see s 57, is also affected by the 3 hour limit. Cross-examination of certain persons is, in substance, permitted (see sub-s (7A)(b)(iiia)) if there is a reasonable possibility that the sample was not taken within 3 hours after the person who provided the sample drove or was in charge of a motor vehicle.
(h) By s 57(9), except if a sample of blood has been taken as provided for in ss 55(9A), 55B, 55E(13) and 56, the result of an analysis of blood must not be tendered unless the person from whom it has been taken has expressed consent to the blood being collected; and the onus of proving consent lies on the prosecution. See also, as to consent, s 57(10).
(j) I should mention also the evidentiary impact of urine and oral fluid tests. Concerning the former, s 57A(9)(b)(iia) is the mirror of s 57(7A)(b)(iiia). But there is no equivalent of s 57(9) and (10) in s 57A. So also, with respect to oral fluid tests, s 57B(9)(b)(iii) mirrors s 57(7A)(b)(iiia). But again there is no counterpart of s 57(9) and (10). These provisions may be compared with s 58, which deals with the evidentiary impact of breath test analysis. That section is notable for the absence of any counterpart of s 57(7A)(b)(iiia) or (9) or (10). The difference is emphasised by s 58(1), which permits evidence to be given of the concentration of alcohol in the breath, the same to be evidence of the concentration at the time of analysis.
(15) Focussing upon s 55(1), the scheme so far as it concerns the requirement to remain is as follows:
(a) A person may be required to remain at a place for no longer than 3 hours after the driving etc of a motor vehicle.
(b) A person is not obliged to furnish a sample of breath if more than 3 hours have passed since the person last drove etc.[37]
(c) A sample, if proved to have been taken within the 3 hour period, will be proof of an offence (assuming that an excess concentration is revealed) against s 49(1)(f).
(d) The excess concentration revealed by such a sample, if taken within 3 hours, will be presumptive of an offence against s 49(1)(a) or (b).
(e) Excess concentration revealed by a breath sample taken outside the 3 hour period will be irrelevant to a charge under s 49(1)(f), but is apparently admissible - though not carrying presumptive force - in respect of an offence charged under s 49(1)(a) or (b). That is because s 55(6) simply removes the obligation of providing a sample within the 3 hour period which is implicit in s 55(1).[38]
(16) In my view, the multiple references to the 3 hour limit in Part 5 strongly support a conclusion that a police officer must convey that limit to a motorist when a relevant s 55(1) requirement is made. But the questions which remain are when, and whether as part of a conjoint requirement, or as a free-standing requirement, that temporal limit must be conveyed.
(17) For sake of completeness, I should refer to the very recent decision of this Court in DPP v Kypri.[39] There, the charge laid under s 49(1)(e) referred to a requirement to furnish a sample of breath 'under s 55 of the Road Safety Act 1986'. The Court held that identification of the applicable sub-section of s 55 is an essential ingredient of an offence under s 49(1)(e) of the Act, and thus that the charge as framed was defective. The Court nonetheless remitted the matter to the Magistrates' Court for consideration whether amendment should be permitted. Although the charge referred to a requirement to accompany, and said nothing about a requirement to remain, the Court did not need to address the question whether the charge was on that account defective.
39 I have considered the predecessor legislation, the relevant Second Reading Speech and the parliamentary debates to see whether any light is shed on the correct answer to the question which I framed at [37] above; that is, light additional to that which emerges from the authorities and legislation review already undertaken. I have also considered the text of similar legislation in other States and Territories for the same purpose. The enquiry has been of limited assistance. But some matters should be mentioned.
40 First, the predecessor of Part 5 of the Act was Division 2 of Part VI of the Motor Car Act 1958. Sections 80D-80G were inserted by Act 8143 of 1971.
41 As originally introduced, there was no explicit provision enabling imposition of a requirement to accompany or to remain. On the other hand, the legislation provided that a person required to furnish a breath sample was not obliged to do so more than two hours after driving[40] a motor vehicle; and provided also that there was no requirement to furnish a breath sample except, in substance, at the place of the driving, or at a police station.
42 Whether or not it was implicit in the legislation as thus enacted that a police officer had some power to get an alleged offender to go to a police station in order to obtain a breath sample, the position was clarified by Act 9477 of 1980. Provision was there made that a person might be required to accompany a member of the police force 'to a police station or the grounds or precincts thereof' for the purposes of providing a breath sample. The two hour limit remained.
43 That remained the position until the Road Safety Act 1986 was enacted. The Minister, in the Second Reading Speech, stated that 'the Bill essentially re-enacts the provisions of the Motor Car Act 1958'. That said, s 55(1) - the old s 80F(6)(a) of the Motor Car Act - now contained reference to requirement to accompany and to remain. But the legislature seems not to have thought that the requirement to remain in substance added anything. Such an understanding is compatible with a perception that the requirement to accompany, the purpose for such requirement, and the then two hour limit meant in combination that the requirement to accompany was not spent the moment that the alleged offender arrived at the police station. The explanatory memorandum said this about clause 55:
Clause 55 provides for a person who has had a positive reading on a preliminary test, or who fails to carry out the test properly to provide a sample of breath ... and for that purpose to accompany a member of the police force ... to a police station.
44 Second, in only one jurisdiction is there legislation approximating s 55(1).[41] There, the requirements to accompany and remain are each introduced by the verb 'require'. That is what the judge of the Trial Division said was missing in the Victorian legislation, if it was to be interpreted as conveying discrete requirements.
45 Third, in several jurisdictions there is a power of arrest, as contrasted with the 'implicit restriction of liberty' in this State. All things being equal, that would likely favour a stricter approach to interpretation of the prerequisites for exercise of the power of arrest.
46 I have earlier expressed the opinion that each of the competing interpretations of s 55(1) is grammatically available. For the reasons which follow, I consider that the appellant's interpretation is to be preferred.
47 First, as I have attempted to explain, the answer to the question, which of the interpretations is the correct one, is not squarely answered by any of the authorities to which I have referred. But I consider that the reasons of Winneke P in Foster are of importance to the resolution of that question. That is so despite the offences there charged not being refusal offences, and despite there being reason, in my respectful opinion, to qualify one aspect of his Honour's analysis.[42]
48 In Foster, the two respondents had been charged, respectively, with offences against s 49(1)(b) and s 49(1)(f) of the Act. In each instance, a police officer had requested the respondent to accompany him to a police station, and the respondent had done so. In each instance, the respondent had furnished a breath sample whilst at the police station which was in excess of the legal limit. In neither case had the respondent been required to remain at the police station for up to 3 hours. The respondents had successfully argued before a magistrate, and again before a judge of the Trial Division, that to prove the commission of the offences it had been necessary for the prosecution to prove that the respondent had been so required. This Court rejected that argument.
49 Winneke P, who gave the leading judgment, characterised the requirements to accompany and to remain as he did in the passages cited at [38](6)-(8) above. To those passages may be added his Honour's preliminary view that -
The power to make the requirements of which s. 55(1) speaks is obviously a power which is invested by the legislature in the police in order to effectuate the purpose and policies of the legislation. Without such powers, that purpose and those policies would be frustrated because police have no authority, from other sources, to require motorists to furnish samples of breath or blood. Because they are facilitative powers, I would have thought that it is not obligatory for the police officer to exercise them, let alone in the manner of a ritual incantation of the type which counsel for the respondents suggests. Rather, as I see it, they are powers which a police officer 'may' exercise as and when circumstances dictate. If the motorist refuses to accompany the police officer to a police station for the purposes of a breath test, the police officer may require him or her to do so; if he or she refuses to furnish a sample of breath into the instrument, then he or she may be required to do so; if he or she refuses to remain at the police station before the test has been administered, the police officer may require him or her to remain - at least until the relevant time has elapsed. If the motorist persists in the refusal, in the face of any such requirement, he or she is at risk of being charged with the offence under s. 49(1)(e), in which case proof of the relevant requirement will become an essential element of that offence.[43]
50 Two points may be made about his Honour's reasons: (1) they involved rejection of single judge decisions upon which counsel for the respondents had relied, those decisions focusing upon there being a duty to inform motorists of the content of the various requirements; and (2), it is clear that his Honour treated the requirements to accompany and to remain as discrete.
51 In the present case, the judge stated that the interpretation which he placed on s 55(1), as a matter of grammar, was consistent with a motorist being provided with a choice of compliance or refusal. But Parliament must have intended that a motorist would be placed in a position to exercise his or her rights in an informed manner. If a motorist was not required to both accompany and remain, an informed choice could not be made.[44]
52 With respect, that seems to me to have gone very close to reviving an approach to s 55(1) which Winneke P rejected in Foster. So I consider that the particular reasoning was incapable of supporting the judge's interpretation of s 55(1).
53 There is another problem with the notion of informed choice in the present context. Once accept, as his Honour did - see [57] below - that the obligation to remain need not be stated until the motorist is at the specified place or vehicle, then informed choice becomes entirely dependent upon the police officer choosing to make, at the outset, requirement both to accompany and to remain.
54 Second, the judge reasoned that the requirement to accompany will be spent once a motorist steps inside a police station.[45] For that reason, a requirement to accompany and remain must be made at the outset - this supporting an interpretation that the requirement to accompany and remain was conjoint.
55 Some matters suggest that a requirement to accompany will not be spent once a person arrives at a specified place or vehicle. The requirement to accompany does not stand alone. It is for a purpose - that is, so that a sample of breath can be furnished. Again, for six years, the predecessor to s 55(1) only conferred a power to accompany. That, together with the purpose of the requirement to accompany, and also the then two hour limit, seems to have been sufficient - at least, factually - to keep persons at or in the vicinity of a police station until a breath test was performed.
56 On the other hand, s 55(1) now specifically confers powers to require a person to accompany and remain. Whatever the legislature understood to be the situation when it enacted s 55(1) - see [43] above - two concepts are now expressed when once there was one. Each should be given a meaning. In the event, I agree with the judge that a requirement to accompany is spent once the person arrives at the specified place or vehicle - which is not to say at the very moment of arrival. But in my view that is a neutral circumstance so far as the issue of interpretation of s 55(1) is concerned. It neither favours not denies the interpretation put upon the provision by the judge.
57 Third, the judge held[46] that what he described as 'the two components of the composite requirement' could be communicated sequentially - the 'accompany component' at the outset, and the 'remain component' on arrival at the specified place or vehicle. Putting to one side nomenclature, I agree with his Honour's conclusion. But again, that is a neutral circumstance.
58 Fourth, the judge stated that 'the refusal will not constitute an offence under s 49(1)(e) unless all the components of the requirement have been communicated'. That was irrespective of the act alleged to constitute the refusal. Thus, if a motorist was to be charged with refusal to accompany, he or she must have been required to accompany and remain; whilst if a motorist, after accompanying a police officer to a specified place or vehicle, was charged with refusal to remain, he or she must have been required to remain.[47]
59 The language of his Honour's second example is perhaps not quite clear. But I take him to have been saying that a charge founded on refusal to remain could not be made out except if there had been an earlier stated requirement both to accompany and remain. So, if there had been no requirement to accompany, because in the circumstances it was unnecessary - for instance, in the probably unlikely event that a breathalyser was available at the place of apprehension - a charge founded on refusal to remain must fail even if a requirement to remain (for example, whilst the breathalyser was being set up) had been made and disobeyed. I cannot accept that this would be a sensible understanding of s 55(1).
60 Fifth, in my view there is force to the submission for the appellant, noted at [23] above, that a reading of s 55(1) which recognises separate accompany and remain requirements best correlates with offences constituted by refusal to accompany on the one hand and refusal to remain on the other.
61 Sixth, the requirements to accompany and remain do involve some degree of interference with liberty in the event that a person complies with any such requirement. So I have considered whether the interpretation favoured by the judge could be supported by application of the principle stated in Coco[48] to which I referred at [38](13) above. I do not think that it can, so long as it is understood that the power to make a requirement to remain mandates mention of the 3 hour limit - as to which see [64]-[67] below.
62 Seventh, I have considered also the respondent's submission that, because s 55(1) of the Road Safety Act must be interpreted, so far as possible, compatibly with the human rights enshrined in s 21 of the Charter, the interpretation adopted by the judge below was correct. The judge concluded, in accordance with authority, that compliance with a requirement made under s 55(1) involves a deprivation of liberty. He then held that his favoured interpretation of the sub-section was compatible with the right set out in s 21(3) of the Charter because a driver will be put on notice of the 3 hour limit and so can ensure that his or her deprivation of liberty does not exceed that limit.
63 A motorist has the right of refusal of a requirement made under s 55(1), albeit that refusal will trigger, in most cases, commission of a s 49(1)(e) offence. Whether it is right to treat 'deprivation of liberty', for the purposes of s 21(3) of the Charter, as encompassing a deprivation which results from a choice exercised by the person so deprived is a matter that need not be decided. What I do think is clear is that, assuming the judge was correct in holding that his interpretation was compatible with the right set out in s 21(3) of the Charter, the competing interpretation is no less compatible. The judge held that what he concluded were the two components of one requirement could be communicated sequentially, the second after the component of accompanying was spent. So the temporal limitation might not be communicated until the latter time. It is not inconsistent with the power to require a person to remain being discrete that the temporal limit should be disclosed when that power is exercised.
64 Eighth, for reasons discussed at [38](14) and (15) above, the 3 hour limit is of great importance to the operation of Part 5 of the Act. In short - (1) the power to require a person to remain at a place or vehicle is not temporally unlimited; (2) the power to require a person to provide a sample of breath, blood, urine or oral fluid is in each case subject to a temporal limit. There is no obligation to provide any such sample outside that limited period; (3) the results of samples taken within the 3 hour period in some instances are elements of Part 5 offences, and in other instances have presumptive evidentiary status; (4) samples taken outside the 3 hour period are, or in some cases may, be admissible in proof of Part 5 (and other) offences. The result is that a person might unwittingly provide self-incriminating evidence if unaware of the temporal limit.
65 In the circumstances just described, it would be wrong, in my opinion, to interpret s 55(1) as leaving it to chance whether a person might unwittingly remain at a specified place or vehicle, and so submit to a degree of deprivation of liberty, for a period exceeding the 3 hour limit; or unwittingly provide self-incriminating evidence outside that period. By 'chance', I mean the prospect that a police officer might or might not inform the person of the temporal limit.
66 I consider, in the event, that s 55(1) should be interpreted as meaning that, in every case where a requirement to remain must be stated - and in practical terms that will mean every case, because there will always be some time elapse between arrival at the specified place or vehicle and the furnishing of the (initial) sample - the requirement must specify its purpose and the temporal limit. So to conclude is consistent with Coco and, assuming its application, s 21(3) of the Charter. Such an obligation should not be confused with a general duty to inform - which was the notion rejected by Winneke P in Foster. Rather, it must be understood as a statement of relevant limitation upon the power conferred by s 55(1). Insofar as Uren stands for the proposition that when a requirement to remain is stated, the statement of requirement must mention the 3 hour limit, I agree. But Uren should not be read as reviving more generally a duty to inform.
67 I say nothing about the form of words which should be used to convey the requirement to remain. But they must address, as a matter of substance, the two matters to which I have just referred.
69 Ninth, I have not ignored, in reaching my conclusion as to the proper interpretation of s 55(1), the fact that the refusal was said to be non-compliance with a requirement 'to accompany the member of the police force prior to 3 hours elapsing since the driving of the motor vehicle'. The fact that the refusal was so alleged could not influence determination of what was, for the purposes of s 49(1)(e), the 'requirement made under section 55(1)'.
70 I must refer to the two grounds raised by the Notice of Contention. I will do so without addressing a technical argument raised by counsel for the Director.
71 I reject each ground. The first, noted at [28]-[29] above, has no textual support at all. Section 49(1)(e) required proof that a requirement was made under s 55(1). Relevantly, there was either one requirement, embodying two components, or two discrete requirements. I have concluded that it was the latter. The relevant requirement was that the respondent accompany the police officer to a specified place for the purpose of furnishing a sample of breath. There is no warrant for
grafting onto that requirement a temporal limitation particularly attaching to the discrete requirement to remain.
72 The second ground, noted at [30] above, is in my opinion without merit, essentially for the reasons discussed by the judge below at [94]-[96] in his reasons.
73 I would allow the appeal and set aside the orders made below on 12 November 2010, and in the Magistrates' Court on 13 July 2009 so far as the charge alleging breach of s 49(1)(e) of the Road Safety Act 1986 is concerned. I would remit the matter to the Magistrates' Court so that a conviction can be entered on that charge, and for determination of penalty.
75 I have had the advantage of reading in draft form the reasons of Ashley JA, with which I respectfully agree.
[2] Compare DPP v Greelish [2002] VSCA 49; (2002) 4 VR 220, 226 [25] (O'Bryan AJA). Again, I make it clear that the above formulation does not involve determination of the critical question in this case.
[3] It does not involve reading additional words into s 55(1)(b), a course which should not be taken 'in the absence of clear necessity': Thompson v Gould & Co [1910] AC 409, 420 (Lord Mersey). See Pearce & Geddes, Statutory Interpretation in Australia, (3rd ed), paragraph 2.13.
[4] DPP v Foster [1999] VSCA 73; [1999} 2 VR 643, 652 [29] (Winneke P, with whom Batt JA agreed 'in all respects' and with whom Ormiston JA agreed, with one reservation).
[6] Section 49(1)(f) reads as follows: '(1) A person is guilty of an offence if he or she - within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under s 55 and -
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle;'
[7] [1999] VSCA 73; [1999] 2 VR 643, 658 [52].
[10] It is a necessary pre-condition of proof of the offence, though not an essential ingredient. This was the effect of the judgment of Winneke P in Foster, as described by Charles JA in DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55, 62 [19].
[11] [1999] VSCA 73; [1999] 2 VR 643, 657 [49] (Winneke P). See also Walker v DPP (1993) 17 MVR 194, 199 (Brooking J).
[12] DPP v Foster [1999] VSCA 73; [1999] 2 VR 643, 652 [29]. Winneke P also spoke of 'the panoply of discretionary requirements' to which s 55(1) referred. Ibid, 652, [28].
[13] Sanzaro v County Court of Victoria [2004] VSC 48; (2004) 42 MVR 279, 283 [11] (Nettle J, as his Honour then was).
[14] Ibid 287 [24]. His Honour explained Walker and Foster, s 49(1)(f) cases, as instances of waiver - which was available under that provision.
[28] Uren v Neale [2009] VSC 267; (2009) 53 MVR 57, [125]-[126].
[29] The heavy penalty (with respect to loss of licence) mandated for a refusal offence should be considered to have a very powerful coercive effect.
[30] Hrysikos v Mansfield [2002] VSCA 175; (2002) 5 VR 485, 488 [5].
[31] Mastwyk v DPP [2010] VSCA 111, [50].
[33] [1994] HCA 15; (1994) 179 CLR 427, 437.
[34] Ibid 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). See also 446 (Deane and Dawson JJ).
[35] Or was an occupant in such a vehicle, if the identity of the driver has not been established to the satisfaction of the officer.
[36] The text of ss 55(9A) and 57(2) has changed since Smith J decided Day v County Court of Victoria & anor [2002] VSC 426. But the result is the same.
[43] DPP v Foster [1999] VSCA 73; [1999] 2 VR 643, 652 [29].
[48] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427.
DPP
Piscopo [2011] VSCA 275
(1993) 17 MVR 194
(2002) 5 VR 485
(2004) 40 MVR 415
(2009) 53 MVR 57
(2002) 4 VR 220
(2001) 4 VR 55
(2004) 42 MVR 279
(1994) 179 CLR 427